Thank you for the invitation to appear.
The study of bail is hardly new. In 1965, Professor Martin Friedland studied the problem of pretrial incarceration and published his results in his book, Detention Before Trial. The Charter of Rights and Freedoms came into force in April 1982. In that document, bail was guaranteed through paragraph 11(e), providing that any person charged with an offence has a right “not to be denied reasonable bail without just cause”.
In 2012, the national symposium on reinventing criminal justice studied bail and published its report and recommendations. Under the heading “Symposium Recommendations Aimed at Reducing the Remand Population and Improving the Bail Process”, the report states, “Symposium participants emphasized the importance of this early stage of a criminal proceeding and the need to allocate resources at the front end of the criminal justice process.”
Bail was once again studied in 2016 by the steering committee on justice efficiencies and access to the justice system. In that 2016 report, the committee wrote:
Accurate issue identification and effective reform depends upon a foundation of reliable evidence.... Our review of available data shows that there is a dearth of comprehensive, objective and reliable information about the bail process that would permit strong inferences or accurate conclusions about its operation.
The absence of reliable, objective, comprehensive data about various aspects of the diverse bail processes across this country has hampered the accurate identification of issues and conversations about reform....
The report did note and make a recommendation about the benefits of bail supervision as opposed to incarceration.
Bail was considered by the Supreme Court of Canada in 2017 in the case of Regina v. Antic, a case I'm sure all of you are familiar with. In that decision, the court referred to Professor Kent Roach and his work, and to where he observed, “Although the Charter speaks directly to bail, the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era.”
In Antic, the court also recognized that pretrial custody affects the mental, social and physical life of an accused and his family. It may also have a substantial impact on the result of the trial itself.
Again, in 2020, the Supreme Court of Canada considered bail in the case of Regina v. Zora. In that case, the court observed that judicial officials making bail decisions are required to give particular attention to the circumstances of the accused persons who are indigenous or who belong to a vulnerable population that is overrepresented in the criminal justice system and disadvantaged in obtaining release. In other words, the court recognized that there are people who are caught in the criminal justice system—who find themselves in the system—and are disadvantaged and overrepresented. As a result of the disadvantage, they are disadvantaged in obtaining release.
In Zora, the court observed that there is a culture of risk aversion that contributes to courts' applying excessive conditions.
I am not an elected official; I'm a lawyer. I can't comment on what might motivate elected officials to suggest that bail reform is needed, that streets might be unsafe, or that more people should be denied bail and held in jail while presumed innocent. However, to be clear, I am in favour and do recommend that informed discussions about important issues—as opposed to attention-seeking quotes and headlines—are always good.
I don't suggest that everyone charged with an offence should be granted bail. I do suggest that using jails to address what are often social problems arising from considerations such as homelessness, addiction, mental health challenges and poverty is regressive. I do say that frontline prosecutors are already well equipped to oppose requests for bail in appropriate circumstances. Frontline judges are well able to grant or deny bail as is appropriate. Appeal courts are well equipped to review bail decisions.
If reform is considered, I urge that it be evidence based and use statistics, not guesswork or impressions. How many people are currently in pretrial detention and for how long? Why are they detained? Is it the primary, secondary or tertiary consideration? How many people who are released on conditions breach them? What offences are they committing?
If people are released and offences are committed, was it because of a system failure, or does it reveal a gap in the existing law?
If there is a concern that people are being released and committing offences and that this is revealing a problem, I urge you to study the transcripts of their bail hearings so you can understand accurately what it was that took place and why the people are on the street.
Thank you.